Peter Tyndall outlines the case for reform of Commissioner’s roles.
In December, I left Wales to become Ombudsman and Information Commissioner in Ireland. I left behind an institution which has proved effective and innovative and which has excellent founding legislation. However, the bar does not stay still, and it is time to consider enhancement. I’ve been disappointed by the failure to bring private healthcare into jurisdiction in recent times, in contrast to the situation in England. There has also been a failure to properly factor in the hard hitting impact of Ombudsman reports in the review of complaints in the health sector. I wish my successor Nick Bennett every success. I’m sure he will do a fine job and he’s inheriting a great team. I hope that the Assembly will demonstrate the ambition of those who drafted the original legislation and give him the powers and jurisdiction he needs to have the maximum impact in gaining redress for individuals and improving public services in Wales.
This weekend on Click on Wales
One of the institutional innovations in post-devolution Wales’ governance arrangements since 1999 has been the establishment of Ombudsman and Commissioner offices. Academics at Aberystwyth University arranged an inter-disciplinary seminar to critically examine, within a comparative UK and Ireland context, their role in devolved Welsh governance. This series of Click on Wales blogs feature some of the seminars’ key speakers. A policy briefing report on the seminar’s findings and recommendations is available here: http://www.aber.ac.uk/en/
Public Services Ombudsmen are the final tier in the complaints system, short of the courts. Ombudsmen are independent of the services in their jurisdiction, use an investigative rather than an adversarial methodology, are free to use and are bjective arbiters of complaints, rather than advocates for service users. They have a dual role, investigating complaints and improving services.
Unlike the courts, the Ombudsman seeks to find evidence of maladministration. This can be caused by a non-compliance with the law, but can equally be a product of unfairness, delay, sloppy procedures or human error.
The current legislation, the Public Services Ombudsman Wales (Act) 2005, was widely regarded as among the most advanced legislation governing an Ombudsman institution internationally and has since been used as the model for new draft legislation in Northern Ireland.
Given that this is good legislation which is working well in practice, , why is a review desirable? By the time any new legislation is likely to be drafted, the office will be ten years old. New legislation has been introduced in the Republic of Ireland and elsewhere since 2005. There is best practice elsewhere which should be adopted in Wales.
I‘ve considered some potential improvements below.
Most devolved services which are regulated are in jurisdiction, but there are some gaps including, for example, private
There are also major gaps in the field of education. Further and higher education are within the remit of the Welsh Government, but redress is still provided on an England and Wales basis.
Currently, all complaints should be in writing, but this is in part counteracted by a discretion for the Ombudsman to choose to accept complaints in other forms if appropriate.
However, in view of the changing nature of electronic communication, and the considerable equalities issues about potentially excluding people who cannot write, including, for example, people with learning disabilities, there should be changed.
Own initiative investigations
Almost all public services ombudsmen internationally, can undertake investigations on their own initiative. As Ombudsman in Ireland I already have this power and it is proposed that it should be introduced in Northern Ireland also. It should be available to the Ombudsman in Wales.
The private sector
Where the bodies in jurisdiction are public bodies, the existing powers of recommendation work well and there is no evident need for change. However, where private bodies are in jurisdiction, compliance may be harder to secure. Private sector ombudsman schemes normally have binding powers and it would be helpful to consider including this provision in respect of private providers in the future.
Private sector ombudsman schemes are normally funded by the bodies in their jurisdiction. This should be the case for any private provider in the office’s jurisdiction.
Complaint handling regulation
In Scotland, the Ombudsman is the Complaints Design Authority and all public service providers are obliged to adopt a standard approach. There is a case for adopting such an approach in Wales.
Links with the courts
There is currently a statutory bar which prevents the PSOW from considering a complaint where the case could be considered by the courts. However, there is discretion to set this requirement aside. This bar should be removed so that complainants can choose the most appropriate route.
The Administrative Court should be able to “stay” cases and to refer them to the Ombudsman, but the discretion as to whether to investigate should remain with the Ombudsman.
The PSOW should be able to refer a case to the court for determination of a point of law.
The above points set out a number of areas in which change is desirable. It is not exhaustive, and neither is there an equal case for each proposal. There should be a formal review of the legislation with a view to enhancement. Wales has been innovative and effective in developing an ombudsman service in which is well regarded elsewhere, but should not rest on its laurels.